The “Heart of SEQRA” – the Environmental Impact Statement – at the verge of extinction

[A version of this post is published at page 8 of the print and digital version of the February 14-20, 2018 edition of “The Public” under the headline, “The Endangered Environmental Review”: https://issuu.com/dailypublic.com/docs/public_y18w7web. Once again, my thanks to Geoff Kelly, the publication’s editor-in-chief, for extending the reach of this humble blog.]

ZERO. That’s the number of times during the entirety of 2017 that a city, town, village, industrial development agency, school district, or any other local government agency in ERIE COUNTY issued a “Positive Declaration” and required preparation of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA) prior to approving a proposed development project, enacting a new law, or adopting a change in land use policy.

ZERO. That’s also the number of times in 2017 a local government agency in NIAGARA COUNTY issued a “Positive Declaration” and required preparation of an EIS for a proposed project or law.

As a matter of fact, a review of the Environmental Notice Bulletin [ENB] – published by the New York State Department of Environmental Conservation [DEC] – reveals that during 2017 only TWO Positive Declarations requiring a proposed action to undergo the EIS environmental review process were issued for proposed projects and laws in the six counties comprising DEC’s Region 9 – Allegany, Cattaraugus, Chautauqua, Erie, Niagara, and Wyoming counties. [See here and here.]

And it’s not only the hundreds of local agencies in the six-county “Region 9” area that spent an entire year without requiring a project sponsor – including the government entities themselves – to prepare an Environmental Impact Statement. Not one New York State agency issued a Positive Declaration during 2017 for an action proposed for Region 9’s six counties. Not the NYS Office of Parks, Recreation and Historic Preservation. Not the NYS Urban Development Corporation/Empire State Development. Not even the DEC, the state department entrusted with the duty of promulgating SEQRA regulations and protecting NYS’s environment and its human and community resources. [Click here for my compilation of DEC Region 9 – 2017 SEQR and Other Notices]

The EIS is accurately characterized by NY’s courts as “the heart of SEQRA.” It is a document which provides government agencies, the project sponsor, and the public a means to systematically consider potential environmental impacts, alternatives to a proposed action, and appropriate mitigation measures to eliminate or substantially reduce adverse impacts. Whenever a proposed project or policy – referred to by SEQRA as an “action” – may have the potential for one or more significant adverse environmental impact, the SEQRA mandates that the “lead agency” issue a “Positive Declaration” and require preparation of a draft EIS.

But the letter and spirit of SEQRA are being avoided – not followed – by local or state agencies. For example, the desire of the City of Buffalo to be “developer friendly” and place virtually every land use project on a “fast track” to approval has led even the most conscientious member of the city’s Planning Board – Cynthia Schwartz – to apologize to a developer’s lawyer during a public hearing for even mentioning her belief that a massive project on the shore of Lake Erie needed an EIS.

And it doesn’t matter how large a proposed project is, or how sensitive ecologically the site of the proposed development may be. In 2014, Gov. Andrew Cuomo’s administration – with the College of Nanoscale Science and Engineering serving as “lead agency” – allowed construction to proceed at the 90-acre, nearly one-million square-foot manufacturing and research and development complex at South Buffalo’s RiverBend site without preparation of an EIS. This glaring disregard of SEQRA’s requirements occurred despite the project’ location along the Buffalo River’s highly sensitive “Area of Concern” (AOC), one of the most toxic hotspots in the Great Lakes region.

Given the State’s approach to the Riverbend project, it’s not surprising that the Governor’s economic development engine, Empire State Development, concluded in April 2017 that an Environmental Impact Statement wasn’t needed for the proposed Athenex Manufacturing Project in the Chautauqua County Town of Dunkirk. After all, how could there possibly be a potential adverse impact to the environment when clearing a 33.5-acre site near Lake Erie and constructing a 40-foot high, 320,000-square-foot pharmaceutical manufacturing facility housing manufacturing, warehouse, laboratories, office and central utilities spaces?

The paucity of EISs should be troubling to anyone who cherishes NY’s natural and manmade resources, who believes that our government officials and agencies are obligated to objectively and fairly comply with state law, or who believes that zoning, land use, and development decisions should be made by fully-informed agencies following meaningful public scrutiny and review.

2 comments on “The “Heart of SEQRA” – the Environmental Impact Statement – at the verge of extinction”

I still think the subject of the entire Buffalo River Basin and outer harbor should be subject to a full SEQRA process.Its not unheard to to conduct After the Fact EIS’s that were conducted on wester River Dams a few times.

But the ultimate insult to any pretense of using the short and long term Public Interest was to allow the Queens Landing Development to even begin without SEQRA.

For five decades New York State has been supposedly using LWRP’s to ensure proper reuse of our waterfronts.

Coastal Zone Management was supposed to add another scientific layer to the protection to ensure the restored waterways revitalization principally water related work replaced the industrial sites that are more properly located away from waterways and if not mitigation could compensate.

It is arrogant and cynical refusal to refuse the lessons of the past and allow private development that denies access to waterways whose clean up was financed by the very tax payers who again see private profit edging them into whatever is left over.

The current administration is doing its best to destroy the water quality of the Great Lakes and if my guess is correct a hot summer or two may change their indifference, But in time they will be discarded and restoration efforts resumed. In the meantime thorough reviews and honest EIS’s are our only protection.

CATEGORIES

DISCLAIMER

This blog is provided for general informational purposes only. It should not be construed as legal advice and is not intended to be a substitute for legal counsel. Persons requiring legal advice should retain a properly licensed lawyer. No attorney-client relationship will be formed based on use of this site and any comments or posts to this blog will not be privileged or confidential. ***************
This blog's author, Arthur J. Giacalone, does not intend or consider the communications at this blog to be ATTORNEY ADVERTISING. The primary purpose of the communication is not for the retention of Mr. Giacalone's legal services. [See definition of "Advertisement" at Part 1200, Rules of Professional Conduct, Rule 1.0(a).] Nonetheless, in case the proper authorities choose to treat this web site as ATTORNEY ADVERTISING, the street address, phone number and email address of the law office of Arthur J. Giacalone are: 17 Oschawa Avenue, Buffalo, New York 14210; (716) 436-2646; AJGiacalone@twc.com.